*1 TITLE: United States of America, Plaintiff v. Terry Lynn Nichols, Defendant.

TOPIC: TERRY LYNN NICHOL'S MEMORANDUM RELATING TO QUESTIONS OF JUROR 342: THE "INTENTIONAL DELIBERATE MURDER" QUESTION

DOCKET-NUMBER: 96-CR-68-M

VENUE: U.S. District Court for the District of Colorado.

YEAR: Filed: October 9, 1997

JUDGE: Hon. Richard P. Matsch, Chief District Judge

ATTORNEY(S): Michael E. Tigar, Esq., Ronald G. Woods, Esq., N. Reid Neureiter Esq., Adam Thurschwell, Esq., Jane B. Tigar, Esq., Denver, For the Defendant Terry Lynn Nichols.

TEXT:

Mr. Nichols respectfully submits this memorandum to clarify his position with respect to the questioning of Juror 342, occurring on the morning of October 8, 1987, and to provide some guidance to the Court as to the basis and need for the type of questioning attempted there.

As this Court has observed over the past eight days of jury selection, many prospective jurors enter the voir dire process harboring the view that death is the only fitting punishment for a premeditated, deliberate murder. The law, of course, says otherwise. During its questioning, the Court informs each prospective juror of the legal duty of jurors to consider and give effect to all relevant circumstances about the offense and the offender, in the event the case reaches the penalty phase. In response, the jurors invariably profess a willingness to listen to "all the circumstances" before deciding punishment. The prosecutor then firms up the declared willingness to consider "all the circumstances" through leading questioning that is as predictable as it is unilluminating. [FN1]

FN1. See, e.g., Questioning of Juror 342:

Q. (by Mr. Mearns): Now, on page 30, Question 129, you indicated that you agreed strongly with the proposition that it was important to follow the Court's instructions; is that correct?

A (Juror 342): Correct.

Q: Do you have the same view with respect to the Court's instructions with respect to possible punishment as well?

A: Yes, I think so.

Q: Would you have any problem in setting aside whatever personal views you might have about punishment and follow the Court's instructions in this case?

A: I would do my best to follow the Court's instructions.

Tr. 10/8/97 at 1917-18.

End of FN.

Only when Defense Counsel begins questioning does it become apparent that a juror might not completely understand. Frequently, prospective jurors interpret the phrase "consider all of the circumstances" to mean that they are to reassess whether the defendant really committed the crime and whether the offense was committed with intent and deliberation. In other words, while they are willing to consider self-defense or lack of intent as mitigation, these are "circumstances" that would negate a finding of guilt altogether. The corollary is that for these jurors, a guilty verdict at trial preordains a penalty of death. [FN2]

FN2. Juror Number 84 is a classic example. In response to the Court's initial questioning, he professed to wanting to know "everything about the case and all that" before he could make a decision. The Court further prompted him to acknowledge that he would also need to "know everything about the individual ... who is being judged." Tr. 1750 lns 11-17.

But during examination by Defense Counsel it became clear that by "considering mitigating circumstances" before assessing sentence, the Juror was really talking about learning everything about the commission of the crime. "The circumstances--I would have to know everything that went on and if--you know, who all had a part in it, I guess." Tr. 1765. lns 20- 21. He then candidly admitted that he could not think of a case where a person who committed an intentional murder should receive a sentence of life in prison. Tr. 1766 lns 6-10.

The Court recognized and followed up on the juror's fundamental inability to look beyond the commission of the crime to consider and give effect to the offender's individual characteristics: "Q. Yeah, but you've talked about the crime; and what you seem to be saying, you want to be knowing everything you could know about the crime. A. Yeah." Tr. 1767 lns 2-5. The Court probed further:

Q. Does that have any meaning to you as to who they are, and can you conceive that one person may be--for that person death might be justified but for another not, because of differences in who they are and what they are?

A. I don't think so.

Tr. 1769 lns. 21-25.

End of FN.

The problem we identify in this memorandum is exacerbated by the prosecutor's gambit of asking each prospective juror if they remember where they were on the morning of April 19, 1995. They all do. They then conjure up images of that devastation. So here in Colorado as in Oklahoma, the bombing has become the "event by which time is measured."

There is more. The sentence of death of Timothy McVeigh, as juror responses reveal, has become--for most jurors--the event by which just punishment is measured. The prosecutors argued to this effect in the McVeigh trial, in widely quoted language. And all their leading questions to these jurors will not stop them from saying again--if they get the chance, in a summation--that the crime alone is enough to authorize shedding Mr. Nichols' blood. Perhaps this state of affairs is due in part to the meagerness of mitigating evidence about Mr. McVeigh at his own trial.

*2 Whatever the reason, it is clear that most of these prospective jurors think that the McVeigh sentence was just, precisely because of the enormity of his crime. The only possible antidotes are: (1) this Court making clear why the trials were separated and that individual consideration is paramount; (2) this Court making clear that the McVeigh jury's decision was individual to that jury, that defendant and that evidence, and that the evidence here will be different; (3) this Court continuing to make clear the requirement of individualized consideration of offense and offender, and (4) permitting counsel to explore these issues in context, recognizing that the enormous publicity about and apparent approbation of the McVeigh verdict is a powerful force that cuts against a fair trial for Terry Nichols.

In addition, when Defense Counsel is confronted with a prospective juror whose initial answers suggest an "eye-for-an-eye" or "punishment-fits-the- crime" stance, it is essential that he probe keenly in two areas. The first is whether the prospective juror understands that the defendant's intent and deliberation in committing an act likely to take human life will have been determined beyond a reasonable doubt before the jury ever starts the weighing of aggravating and mitigating factors required by statute. The second is whether the prospective juror nonetheless could be open to a penalty less-than- death, knowing that he will be assessing punishment for a person convicted beyond a reasonable doubt of intentional premeditated murder. It is easy for a juror to say that he would not automatically give death to a person now presumed innocent. It is far harder to grasp that the refusal to impose reflexively a sentence of death must extend beyond the guilty verdict--beyond the finding that the defendant acted with intent--and into the weighing component of the penalty phase.

It is absolutely essential that these concepts be probed, perhaps repeatedly, to clarify any potential confusion. For the experienced capital punishment advocate, the issues are complex. For the layperson, they are likely to be trebly bewildering, especially given the formal environs, the presence of the microphone, and the large audience.

Juror 342 had written in his questionnaire that the imposition of the death penalty is appropriate "When a person's life has been taken." Tr. 1928, lns 20-21. He reaffirmed this position under examination by defense counsel:

Well, I don't think I would agree that the death penalty would be appropriate punishment if the crime hadn't caused the death of another person. There would have to be life taken before the death penalty should be imposed.

Tr. 1929 lns 1-4. This statement could be interpreted in one of two ways. Either Number 342 believes that the taking of a life is a necessary, but not sufficient, condition to impose the death penalty. Or he believes that the taking of a life is enough, in and of itself, to merit a death sentence. Counsel tried to probe whether the juror understood that once in the weighing phase, the government already will have proved the defendant to be an intentional murderer:

*3 Q. (Mr. Woods) You understand that to get to a punishment hearing in any murder case, the Government first has to prove the defendant guilty of the offense of deliberate, intentional, premeditated murder?

Mr. Mackey: Objection.

By Mr. Woods

Q. Are you with me there?

The Court: Overruled. Let him continue.

Juror: Yes, I follow.

By Mr. Woods:

Q: Now, do you have a view as to what the appropriate punishment should be in any case where the Government has proved that the defendant intentionally, deliberately, premeditatedly killed another person?

Tr. 1930-31. The Court then sustained an objection and concluded questioning along this line with the statement, "I think this man has answered the questions concerning what he would take into consideration [ ] under the law." Tr. 1931 lns 18-21.

Because of the limitations imposed by the Court, Defense counsel was prevented from evaluating whether the juror could consider a penalty less than death for a person convicted of intentional premeditated murder.